Protecting our Seniors: The Alarming Rise of Elder Financial Abuse and legal recourse available

In Canada, seniors now outnumber children. Elder abuse, including, elder financial abuse impacts between 4-10% of older adults in Canada. Only 1 in 5 incidents of elder abuse comes to the attention of those who can help.

The World Health Organization (WHO) defines abuse of older adults as “a single or repeated act, or lack of appropriate action, occurring within any relationship where there is an expectation of trust, which causes harm or distress to an older person.”

Types of elder abuse ranges from financial abuse, psychological abuse, spiritual or religious abuse, sexual abuse, neglect to physical abuse.

Recognizing elder abuse

There is unfortunately no one screening method that will work to recognize all kinds of elder abuse. Obtaining the confidence of a client, particularly a senior, is not a matter of working through a standard checklist of questions. The approach must be personalized to each client.

Signs of physical abuse in seniors can be tangible. Signs such as dehydration or unusual weight loss, missing daily living aids, unexplained injuries, bruises, cuts, or sores, unsanitary living conditions or unattended medical needs can be indicative of physical elder abuse.

However, recognizing elder financial abuse can be challenging.

Recognizing elder financial abuse

Recognizing elder financial abuse might not be straightforward. Some signs of elder financial abuse to look out for are:

1. Unexplained financial transactions: Sudden or unexplained withdrawals from bank accounts or unusual changes in financial documents, such as wills or powers of attorney.
2. Isolation: Isolation of the senior person from friends and family members, especially those involved in their financial matters.
3. Significant changes in spending patterns: Unexplained purchases, especially high-value items, that the senior would not normally buy.
4. Forged signatures: Documents with the senior’s signature that appears forged.
5. Pressure or coercion: Signs of coercion or pressure to change financial arrangements, sign documents, or make financial decisions against their will.
6. Unpaid bills or disconnection notices: Notices of unpaid bills or threats of utility disconnection when the senior should have sufficient funds.
7. Unexplained disappearance of assets: Missing personal belongings, valuable items, or changes in property ownership.
8. Unusual or unexplained loans: Evidence of loans or withdrawals that the senior cannot explain.
9. Lack of basic necessities: Evidence of the senior lacking necessities despite having adequate financial resources.
10.  Misusing senior’s bank cards or credit cards: Unusual bank or ATM activity on behalf of the senior.

Immediate steps to be taken to prevent elder abuse if suspected or confirmed

Lawyers play a vital role in preventing elder financial abuse by taking proactive steps to protect their senior clients. Following are some measures that lawyers can take:

1. Keep the lines of communication open: Maintain open communication with the senior to understand their financial decisions and offer help, if needed. Ask the senior- how they are doing; if they are having any trouble at home or in other ways; if there is someone you can put them in touch with who may be able to help.
2. Inform clients about common scams: Educate senior clients about prevalent scams and fraudulent schemes targeting seniors, emphasizing the importance of skepticism toward unsolicited offers and requests for personal information.
3. Regularly review and update legal documents: Ensure that wills, powers of attorney, and other legal documents accurately evidence the senior’s wishes. Regular reviews can help identify any changes that may indicate potential abuse.
4. Power of Attorney Document: Lawyers can play a pivotal role in suggesting safeguards when drafting powers of attorney, such as requiring it may only be invoked upon a physician confirming the grantor as incapable, involving third-party monitors, or using professional trustees.
5. Capacity – a legal test: When drawing or modifying legal documents, lawyers must assess the client’s mental capacity and determine that the client has the requisite capacity to instruct counsel and execute the document (noting that capacity is a legal test). This can help identify vulnerabilities and protect against potential undue influence.
6. Guardianship, if necessary: In cases where a senior is at risk due to diminished capacity or susceptibility to manipulations and there is no Power of Attorney (for Property/Personal Care) or it is in dispute, lawyers can assist their client to initiate guardianship proceedings to appoint a legal guardian who can protect the client’s interests.
7. Inform the retirement home: If the senior resides in a retirement home, report the abuse to the Retirement Homes Regulatory Authority.
8. Inform the long-term care home: If the senior resides in a long-term care home, report the abuse to the Ministry of Health and Long-Term Care.
9. Inform the authorities: If the senior does not live in a retirement home or long-term care report to the police, health or social services.

Legal recourses available in cases of elder financial abuse

In Ontario, there are legal provisions/recourses available to address elder financial abuse. The following are key avenues that seniors can explore when dealing with such a situation:

1. Criminal charges: If the abuse involves criminal activities such as fraud, theft, or forgery individuals can report the matter to the police. Law enforcement may investigate and, if appropriate, lay criminal charges against the perpetrator.
2. Adult Protective Services: Ontario has an Adult Protective Services branch that investigates and responds to abuse or neglect of seniors. The lawyer may suggest the senior to contact the local Adult Protective Services office to report suspected elder financial abuse.
3. Power of Attorney investigations: If the suspected abuse involves the misuse of a power of attorney, the office of the Public Guardian and Trustee (PGT) can investigate complaints. The PGT can also be involved when there are concerns about the well-being of an incapable person.
4. Guardianship and substitute decision making: In cases where the senior is deemed incapable of making financial decisions, the court may appoint a guardian or substitute decision-maker to act in the person’s best interest.
5. Breach of fiduciary duty: In cases when the abuse involves the misuse of a position of trust and authority, an application can be filed claiming breach of fiduciary duty and claim damages. Legal remedies may include compensatory damages, injunction, removal of fiduciary or punitive damages.
6. Conversion: Conversion can be used as a legal remedy in cases where it can be shown that the agent used the principal’s property in a manner inconsistent with his or her rights of ownership. The Court can award compensatory damages, order return of property, injunctions, or punitive damages.

Conclusion

In conclusion, the prevalence of elder financial abuse in Ontario is a concerning issue that demands attention, awareness, and action. As the population ages, it becomes increasingly important to safeguard the well-being and financial security of our seniors.

To combat elder financial abuse effectively, a multi-faceted approach is crucial. A part of this approach is to implement legal protections. Ensuring that legal documents, such as powers of attorney and wills, are up-to-date and reflect the wishes of the senior individual helps prevent unauthorized access to their finances. Lastly, the legal recourse available, including criminal charges, civil litigation, and protective measures, serves as a deterrent and a means of holding perpetrators accountable for their actions.

Any article or other information or content expressed or made available in this Section is that of the respective author(s) and not of the OBA.